In this habeas action pursuant to 28 U.S.C. § 2254, the petitioner challenges his state conviction for the first-degree murder of his foster son. The petitioner contends that his trial counsel provided ineffective assistance by inadequately advising him about disclosing the location of the murdered child's body, then disclosing the location of the body-buried in the basement of the petitioner's house in a hole cut in the concrete slab, refilled with concrete, and covered with a carpet-during a bond review hearing. At least three previous searches of the petitioner's house had not revealed the location of the child's body. A magistrate judge recommended that the petitioner's § 2254 petition be denied, because the petitioner had failed to prove that his trial counsel's performance was deficient, although the magistrate judge concluded that the petitioner had proved that prejudice resulted from disclosure of the location of the body. The respondent has objected to the magistrate judge's conclusion that the petitioner has shown prejudice from his trial counsel's disclosure of the location of the body. The petitioner has objected to the magistrate judge's recommendation to deny his § 2254 petition, arguing that this court should find that he has proved both deficient performance of his trial counsel and resulting prejudice. These objections have triggered my de novo review of parts of the report and recommendation.

I.INTRODUCTION

A.Factual Background

As Magistrate Judge Leonard T. Strand noted in his Report and Recommendation, absent rebuttal by clear and convincing evidence, I must presume that any factual determinations made by the Iowa courts were correct. 28 U.S.C. § 2254(e)(1); see Bell v. Norris, 586 F.3d 624, 630 (8th Cir. 2009) (a federal court must deem factual findings by the state court to be presumptively correct, subject to disturbance only if proven incorrect by clear and convincing evidence). Therefore, because there are no objections to the findings of fact by the Iowa courts concerning his conviction, I will adopt those findings.

1.The murder and disposal of the body

On petitioner Donald L. Boss's direct appeal of his conviction, the Iowa Court of Appeals summarized the facts leading to his conviction, as follows:

Donald and Lisa Boss adopted Timothy in Michigan before moving to Remsen, Iowa. Timothy was a special needs child, and the Bosses received subsidies from the State of Michigan for his care.

On January 2, 2002, the Plymouth County Sheriff's Department received a request from authorities in the State of Michigan to check on Timothy's welfare. Deputies Bartolozzi and TeBrink went to the Boss residence where Lisa Boss told them Timothy was living in Kentucky with her sister. Lisa Boss's sister revealed Timothy was not with her and she had not seen him in a year and a half.

Sheriff's deputies returned to the Boss home that night and found Lisa and the children were gone. Donald Boss was at the residence and agreed to speak with the deputies. Boss informed them Timothy had caused a great deal of trouble in the family and his wife had decided to return to Michigan with Timothy. At the end of the interview, Boss stated, "Guess I bought a year and a half and it's over. My life's over now." Boss agreed to return to the sheriff's office with the deputies.

On the trip to the sheriff's office, Boss made several incriminating statements. He admitted the version of events he had given at his home was not the truth. He said Timothy had fallen and hit his head, but the fall had not killed him. He said Timothy's death was not accidental. Boss admitted to beating Timothy and stated he thought he may have given Timothy an overdose of Doxil, a drug used for the treatment of Attention Deficit Disorder. Boss was later charged with murder.

On February 25, 2002, a hearing was held on Boss's request for a reduction in bond. Boss's counsel presented to the State's attorneys a typewritten statement signed by Donald Boss. It said Timothy's body was under the floor in the basement of the Boss family home and it granted the State permission to take whatever steps were necessary to retrieve the body. State authorities broke through the concrete flooring and discovered Timothy's decomposed body wrapped in a blanket. Because there was very little soft tissue on the body, no specific cause of death could be determined. There were, however, signs of prior injuries to the bones of the arms and teeth. A small bone in Timothy's left hand had been broken.

Timothy's brothers, Claxton and Roman, testified at Donald Boss's murder trial. They stated Timothy was disciplined for attempting to escape a locked room through a hole he had punched in the wall. Timothy was then tied to an orange folding chair with plastic ties. A plastic tie was also placed around Timothy's neck and attached to a shelf. Timothy was then beaten with a wooden paddle or board. Timothy was then left tied to the chair. When Donald Boss cut Timothy from the chair hours later, Timothy slumped to the floor. Attempts to revive Timothy failed. Timothy was then taken upstairs and placed in a bathtub of cold water.

The evidence also revealed Donald Boss rented a cement saw, cut a hole in the basement floor, and buried Timothy. He then poured a concrete slab and covered it with carpet. Boss told the members of the family he had taken Timothy back to Michigan. He filed a report with the State of Michigan to continue to receive subsidies for his adoption.

Neither of the parties has objected to Magistrate Judge Leonard T. Strand's recitation in his Report and Recommendation (docket no. 63) of the factual background to the disclosure of the location of the murdered child's body during Boss's pretrial bond hearing. Therefore, I will repeat here Judge Strand's recitation of that background:

The factual background arises from a bond review hearing conducted on February 25, 2002. Boss was represented by Michael Williams, an assistant public defender. Transcript of Bond Hearing (Bond Tr.) 2. At the hearing, Boss' mother and father testified about their ability to pay his bond. Bond Tr. 2-6. Boss testified about his current living situation and his employment history. The hearing then took a drastic turn:

Williams: Do you have a pretty steady employment history?

Boss: I've never been without a job. Williams: Did you sign this document directing the authorities to the location of the body of Timothy Boss?

Thoman: Mr. Boss, I've just been handed a statement from your lawyer that says, in the middle of the floor of the basement room at 602 Fulton Street, Remsen, Iowa, with the door that leads outside, that's where the body of Timothy Boss is located. Is that what this statement says?

Boss: Yes, it is.

Thoman: And this is your signature on it dated 2-

25-02?

Boss: Yes, it is.

Thoman: Did you put him under the floor in that location?

Bond Tr. 8-9. Williams objected on grounds that the question was beyond the scope of direct examination. Bond Tr. 9. The judge then suggested that Boss could decide not to answer based on his right against self-incrimination. Boss ultimately invoked his Fifth Amendment right after his attorney advised him to do so. Bond Tr. 9-10. Thoman then raised the issues of whether Boss waived that right by testifying and whether the court would consider his invocation of the Fifth Amendment in deciding whether to reduce his bond. Bond Tr. 11. The judge stated: "The defendant's decision to invoke his Fifth Amendment right is a factor the court is going to consider in determining whether or not the bond should be reduced or modified." Id. Williams responded by stating: "Your Honor, I will take exception to the court's ruling. The Fifth Amendment is to protect the guilty as well as the innocent." Id.

Thoman then asked Boss if he intended to invoke his Fifth Amendment right to any and all questions he would ask. Bond Tr. 12. Boss responded that he would answer questions that would not incriminate him. Thoman then asked Boss if he killed Timothy Boss. Williams objected but Boss answered "No, I didn't." Id. Thoman asked: "Did you hide his body in the middle of the floor in the basement room at 602 Fulton Street, Remsen, Iowa[?]" Id. Boss responded by invoking the Fifth Amendment. Bond Tr. 13. Thoman ultimately moved to continue the hearing to allow briefing of the Fifth Amendment issue. Williams did not object and the court granted the motion. Bond Tr. 13-14.

Report and Recommendation (docket no. 63), 4-5.

B.Procedural Background

1.State proceedings

a.Conviction and direct appeal

On December 12, 2002, Boss was convicted by a jury, in the Iowa District Court for Plymouth County, of the first-degree murder of his son, Timothy, in violation of IOWA CODE § 707.2. On December 16, 2002, he was sentenced to life imprisonment without possibility of parole. He appealed. On January 28, 2004, the Iowa Court of Appeals affirmed Boss's conviction, but preserved the issue of trial counsel's claimed ineffective assistance regarding disclosure of the location of Timothy's body for post-conviction review to allow for further development of the record. See Boss, 796 N.W.2d 458, 2004 WL 137627 at *3. Boss sought further review of his direct appeal by the Iowa Supreme Court, but that request was denied on April 23, 2004, and his conviction became final on April 28, 2004.

b.Post-conviction relief proceedings

i.The district court's decision

On March 11, 2005, Boss filed an application for post-conviction relief in the Iowa District Court for Plymouth County. After an evidentiary hearing at which both Boss and his lead trial counsel, Mike Williams,*fn1 testified, Iowa District Judge Gary Wenell denied Boss's application in a Ruling On Applicant's Application For Post-Conviction Relief (Post-Conviction Relief Ruling), signed on August 27, 2008, and filed on August 28, 2008. See Respondent's Appendix (docket no. 51-1), 12-35. In the pertinent part of his Findings Of Fact, Judge Wenell found the following:

Williams was placed in charge of Boss' case. Williams had experience with murder cases in the past and had worked both as defense counsel and as a prosecutor. Williams had previously asked the county attorney's office whether the disclosure of Timothy's body would yield any kind of reciprocation in terms of plea bargains or other deals. However, the county attorney had not yet offered any deal and Williams states he believed no deal was imminent based on the prosecution's reaction to these offers. According to Boss, Williams was very concerned about "untruthful" things being said by Lisa Boss [Boss's wife, who was also charged with crimes related to the murder, but represented by separate counsel] that were ending up in the media. Williams testified he was concerned that Lisa Boss could not be controlled and that a disclosure of the body might deter her from making more statements and possibly implicate her in the crime.

On February 25, 2002, a bond reduction hearing was held for Boss. At this time, a letter signed by Boss disclosing the location of the body was handed to prosecutors by Williams. Upon receiving the note, prosecutors contacted law enforcement who conducted a fourth search whereupon Timothy's body was located. In addition, further evidence was found including evidence that Boss had leased the cement saw. This evidence was introduced against Boss at trial.

Post-Conviction Relief Ruling at 4 (Respondent's Appendix at 15) (footnote omitted). Judge Wenell also noted, "Boss testified at hearing that he believed the evidence [of the location of the body] might have been used to reduce his bond." Id. at 4 n.2 (Respondent's Appendix at 15).

In the pertinent part of his Conclusions Of Law, Judge Wenell first summarized Boss's argument on the pertinent ineffective assistance claims, as follows:

The main contention of Donald Boss deals with the disclosure of the location of Timothy's body by a signed letter at his reduction in bond hearing. It is undisputed that Boss' legal defense team advised him that disclosing the location of the body via a map and signed letter was the correct action to take. The body was subsequent[ly] recovered, tested and used in the State's case against him. Boss contends this disclosure hurt his case more than any other error alleged against his trial counsel. He contended at hearing that disclosing the body effectively handed the State a key piece of evidence that eliminated several possible defenses, and that the action had no real strategic value as he believes the body provided nothing that aided his case.

After this summary of Boss's arguments, Judge Wenell considered the "prejudice" prong of Boss's claim of ineffective assistance of counsel, as follows:

The disclosure of the dead body by a criminal defendant accused of murder without receiving any form of cooperation from the prosecuting attorneys is an unusual step. Williams acknowledges that this strategy was "outside of the box" and Jones acknowledged on deposition he was told by a supervisor that such a move was a "gutsy strategy" and that the supervisor "wished them luck." The Court is convinced that the disclosure of the body was an action that many other attorneys would not take. However, the question is whether this "gutsy" disclosure resulted in ineffective assistance of counsel under the two prong test. Despite the State's assertions at the hearing, it seems difficult to imagine a trial without the body. While the State argues that the body itself did not provide much evidence, there is no telling how much the discovery of the body impacted every facet of the trial, from various implications arising from Boss' burial of the child; evidence concerning his actions following the death of Timothy Boss; and even the impact of the discovery of the body on other witnesses. In addition, Boss is correct in stating that a disclosure of the body resulted in the foreclosure of some defenses that could have been used at trial. Also, the closing argument at trial refers to evidence produced or aided by the discovery of the body on numerous occasions. Unlike most of Boss' other arguments, it is clear the lack [sic: disclosure?] of a body may have resulted in significant prejudice at trial. However it also clear that the test for ineffective assistance of counsel is a two-prong test. Prejudice is the second factor to be weighed and it only needs to be addressed if counsel's conduct essentially resulted in the failure of an essential duty by failing to act as a reasonable attorney would. To discover whether Boss' defense team was truly ineffective, the Court must review the overall trial strategy as explained to the Court.

Turning to the "deficient performance" prong of an ineffective assistance of counsel claim, Judge Wenell explained, "According to Williams, his actions were a legitimate trial strategy." Id. at 19 (Respondent's Appendix at 30). Judge Wenell then explained, in more detail than I will provide here, the "strategic" reasons for Williams's actions, as the following:

 Williams believed that "disclosure of the body would be useful in demonstrating Boss's cooperation to a jury";

 Williams believed that disclosure of the body
"could be used to shift the blame for the death to Lisa Boss," because
it would allow location of
"cigarette butts which could have been used to tie Lisa Boss to the
crime scene and the burial," even though no cigarette butts were
ultimately found during the recovery of the body, where Williams's
strategy "from the outset . . . was to blame Lisa"; 
Williams was afraid Lisa would cooperate "and receive whatever
benefits arose from disclosure of the body"; 
Williams was concerned that Lisa "was uncontrollable and giving false
statements to officers, and that these potentially damaging false
statements were part of the press coverage"; 
Williams was "concern[ed] that Lisa Boss's legal counsel would seek a
deal";  Williams believed that "evidence from the
body that was negative to their legal strategy would have deteriorated
over time [but] that positive evidence supporting his theory of
accidental overdose may have been preserved"; 
Williams believed "that a disclosure of the body would help Boss'
standing in the community and with the press," because "it would make
him appear to be cooperating with the investigation," and he "believed
that the public would not necessarily believe that simply because Boss
buried Timothy that Boss had killed Timothy"; and 
Williams believed "the body would have been discovered by
investigators at some point."

Judge Wenell did not buy all of these rationales, but he nevertheless concluded that Boss's trial counsel had a legitimate trial strategy:

The Court is not convinced that all of these rationales by themselves would have supported a disclosure of the body. It is hard to say that the body would have been "inevitably" discovered when all previous searches had not yielded any evidence of Boss' conduct in burying Timothy beneath the basement floor. Boss' contention that he thought part of the reason for disclosure was [a] possibility of lowering of [his] bond during the bond review hearing also does not seem very likely considering the circumstances. Also, the Court is not convinced that any positive publicity would occur due to disclosure of the body. However, not all of the legal team's rationales need to have been logical and legitimate tactics. The question is whether any or all of the rationales would result in a competent attorney finding disclosure of the body was a part of a legitimate trial strategy. The Court believes it can be viewed as a legitimate trial strategy.

Post-Conviction Relief Ruling at 21 (Respondent's Appendix at 32).

Judge Wenell then rejected Boss's argument that he had an agreement with Lisa that he would take the blame for Timothy's disappearance, so that she would never disclose the location of Timothy's body. Judge Wenell found "problems with the alleged rock-solid nature of this agreement," in light of concerns about Lisa's comments to authorities and others and Lisa's representation by separate counsel who had not been persuaded to cooperate in a joint defense. Id. at 21-22 (Respondent's Appendix at 32-33). Judge Wenell noted,

Boss gave his consent to Williams for disclosure of the body though he now thinks such consent was unwise. He states he communicated to his counsel that he believed Lisa would never disclose the location of the body, but knew that one of the reasons for Williams' proposed action was to get Lisa to "quit talking" and that this tactic worked "for a while." Hearing Transcript P. 91-92). Boss also indicates that Lisa was making statements that were entirely untrue and had nothing to do with the crime, indicating he was also not happy with the statements she was making and that he was not entirely in control of that situation. The Court is simply not convinced that [B]oss or Williams knew for certain that Lisa Boss would not damage their case or attempt to negotiate a deal for herself. It appears there was some justified concerns on the part of the defense team that she might have cooperated despite the alleged agreement.

What the defense team has presented to the Court is an overall strategy focused on blaming or at least raising significant questions about the involvement of Lisa Boss in Timothy's death. It appears that evidence they hoped would support that theory would have been located when the body was discovered. This evidence included the cigarette butts; evidence that Timothy died as a result of an overdose; and the general implication that Boss was cooperating by providing the body. In addition, they were trying to "freeze" Lisa Boss' damaging statements, a tactic that even Boss stated was effective for a bit. The fact these theories were not successful in securing an acquittal for Boss does not necessarily mean they were ineffective. The fact that other lawyers may have decided not to reveal such a piece of evidence does not mean trial counsel was acting incompetently. Trial counsel is only ineffective when their conduct is so egregious that they failed an essential duty. The Court does not believe this is such a case. The legal defense team had a strategy, though admittedly a novel one, to disclose the body to help with their overall strategy of placing the blame on parties or events other than Boss. The Court, after hearing the defense team's rationale for their actions believes they had a legitimate strategy in mind, though it also believes such a strategy may have been misguided. A trial strategy that is reasonable, though imperfect and ultimately unsuccessful is not ineffective assistance of counsel. State v. Johnson, 604 N. W.2d 669, 673 (Iowa Ct. App. 1999). "Improvident trial strategy or miscalculated tactics do not necessarily constitute ineffective assistance of counsel." Wemark v. State, 602 N.W.2d 810, 814 (quoting State v. Aldape, 307 N.W.2d 32, 42 (Iowa 1981)).

The Court realizes this piece of evidence could have significantly changed the trial at numerous stages, but prejudice only becomes a factor when the legal strategy is so misguided that it cannot be truly be [sic] called a legitimate legal strategy. The Court believes that under a preponderance of the evidence standard, Williams and Jones have shown enough evidence that they made a tactical decision in support of a legal strategy that could have been aided by the disclosure of the body. The fact that this legal strategy may have backfired does not render their assistance ineffective.

Boss appealed the denial of his application for post-conviction relief, but the Iowa Court of Appeals affirmed on August 11, 2010. See Boss v. State, 789 N.W.2d 165, 2010 WL 3155198 (Iowa Ct. App. 2010) (slip op.). More specifically, the Iowa Court of Appeals provided the following succinct analysis of Boss's ineffective assistance of counsel claim concerning disclosure of the location of the body:

This issue was preserved for post-conviction proceedings in the direct appeal because the record was inadequate to address it. Both Boss and trial counsel testified in the post-conviction proceedings. Trial counsel's strategy was succinctly stated, "Blame Lisa" (Boss's wife).

The court observed the disclosure "may have resulted in significant prejudice at trial," but resolved the claim by finding the attorneys "have shown enough evidence that they made a tactical decision in support of a legal strategy that could have been aided by the disclosure of the body." The court reasoned:

What the defense team has presented to the court is an overall strategy focused on blaming or at least raising significant questions about the involvement of Lisa Boss in Timothy's death. It appears that evidence they hoped would support that theory would have been located where the body was discovered. This evidence included [Lisa's] cigarette butts; evidence that Timothy died as a result of an overdose [Lisa administered all drugs]; and the general implication that Boss was cooperating by providing the body. In addition, they were trying to "freeze" Lisa Boss's damaging statements, a tactic that even Boss stated was effective for a bit. The fact these theories were not successful in securing an acquittal for Boss does not necessarily mean they were ineffective. The fact other lawyers may have decided not to reveal such a piece of evidence does not mean trial counsel was acting incompetently. Trial counsel is only ineffective when their conduct is so egregious that they failed an essential duty. The court does not believe this is such a case. The legal defense team had a strategy, though admittedly a novel one, to disclose the body to help with their overall strategy of placing the blame on parties or events other than Boss. The court, after hearing the defense team's rationale for their actions believes they had a legitimate strategy in mind, though it also believes such a strategy may have been misguided. A trial strategy that is reasonable, though imperfect and ultimately unsuccessful is not ineffective assistance of counsel.

Boss asserts, "There is no rational explanation, strategic or tactical, for the disclosure of the burial site of Timothy during [the bond review] proceeding and in this manner." We, like the post-conviction court, disagree. It is clear from the record that defense counsel was concerned that Lisa would reveal the location of the body. Counsel also was concerned about the media coverage of the case and Lisa's statements in the media. We conclude there was a rational explanation for disclosing the location of the body as quickly as possible to "beat [Lisa] to the punch." While the ultimate effect of revealing the location of Timothy's body may have been prejudicial to Boss's defense, we agree with the post-conviction court that defense counsel had a "legitimate strategy in mind" that was based on extensive experience, considered deliberation, discussion with the defendant, and the unfolding circumstances as the case proceeded. This is not a failure in an essential duty. Boss has not overcome the strong presumption that his counsel's performance fell within the wide range of reasonable professional assistance. See Strickland, 466 U.S. at 689--90, 104 S.Ct. at 2065--66, 80 L.Ed.2d at 693--94.

Boss further asserts the disclosure "raises serious questions concerning disclosure of privileged communications." The record shows that defense counsel had Boss disclose the location of the body only with his informed consent. There was discussion about the disclosure but there was no disclosure until the final agreement by Boss. Boss acknowledged considerable discussion and acknowledged eventually being convinced. He conceded consenting to the disclosure based on the advice of counsel, even though he now claims to have doubted the rationale. Boss's citation to State v. Wemark, 602 N.W.2d 810 (Iowa 1999), is inapposite. In Wemark, counsel's tactical decisions were based on a faulty premise that disclosure was required under the Iowa Code of Professional Responsibility in effect at the time. See Wemark, 602 N.W.2d at 816--17 (discussing the relevant ethical and legal obligations and counsel's mistake). "Wemark was informed by his defense counsel that the location of the knife must be disclosed, and tactics were developed as a means to deal with the disclosure." Id. at 817. In the case before us, however, counsel correctly understood the relevant law and ethical rules. Disclosure was a voluntary, informed, considered, tactical action. We conclude the disclosure of the location of the body was not ineffective assistance. See Ledezma, 626 N.W.2d at 145 (disposing of an ineffective-assistance claim upon lack of proof of either prong).

Boss, 789 N.W.2d 165, 2010 WL 3155198 at *2-*3 (emphasis added).

The Iowa Supreme Court denied further review on October 21, 2010, and procedendo on the denial of post-conviction relief issued on November 8, 2010.

2.Federal Proceedings

a.Boss's § 2254 Petition

On November 15, 2010, Boss commenced this federal action for habeas relief by filing a pro se Petition Under 28 U.S.C. § 2254 For Writ Of Habeas Corpus By A Person In State Custody (§ 2254 Petition) (docket nos. 1 and 9) in the United States District Court for the Southern District of Iowa. However, on January 20, 2011, this action was transferred to this district, which includes the county where Boss was convicted. See Order Transferring Case (docket no. 4).

Boss originally asserted five grounds for § 2254 relief. Ground One alleged that counsel provided ineffective assistance by disclosing the location of the victim's body during a bond review hearing. Ground Two alleged that counsel provided ineffective assistance by failing to investigate inconsistences in the statements of Boss's children (specifically, Boss's son, Claxton) and by failing to secure or investigate a tape recording of Boss's statement to Officer Bartolozzi, purportedly made while Officer Bartolozzi was transporting Boss to the station. Ground Three alleged that counsel provided ineffective assistance by failing to object to numerous uses by the prosecution in its closing argument of the word "liar" to describe Boss. Ground Four alleged prosecutorial misconduct when the prosecutor waved a fist up against pictures of the skeleton of the victim, used the word "liar" multiple times, and substituted his opinions for facts, prejudicing Boss's ability to receive a fair trial. Ground ...

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